Competition Law

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MERGERS

No more than marginal efficiency gains required for efficiencies defence to apply

Oil and gas operations in northeastern B.C. produce hazardous waste, generally disposed of in secure landfill. Four permits for dedicated landfill operations issued; two held by Tervita, which operates two landfills, one for Peejay site, not yet constructed, and one for Babkirk site. BLS, owner of Babkirk, retained firm to prepare documentation to apply for secure landfill permit. At same time, individual respondents (Vendors) negotiated agreement to purchase shares of BLS. Shortly prior to issuance of Environmental Assessment Certificate for Babkirk secure landfill, Vendors acquired shares of BLS through Complete Environmental. Vendors, intending to operate Babkirk site primarily as bioremediation facility, subsequently sold shares in Complete to Tervita. Commissioner applied to Tribunal pursuant to s. 92 of Competition Tribunal Act (Can.), for order that transaction be dissolved on ground it was likely to prevent competition. Tribunal found that quantified anti-competitive effects of merger exceeded quantified gains in efficiency and ordered Tervita to divest itself of BLS shares. Appeal by Tervita, Complete and BLS to Federal Court of Appeal dismissed but further appeal allowed. There was sufficient evidence upon which Tribunal could find that merger would be likely to substantially prevent competition. In order for Tribunal to make most objective assessment possible in efficiencies analysis, Tribunal should consider all available quantitative and qualitative evidence. Commissioner failed to meet s. 96 of Act burden to quantify quantifiable anti-competitive effects; possible range of deadweight loss resulting from merger was unknown due to lack of price elasticity information. Those quantifiable anti-competitive effects, therefore, should be assigned zero weight. Federal Court erred by allowing for subjective judgment to overtake analysis in setting weight of these effects at undetermined. Also unfair to require merging parties to demonstrate that efficiency gains exceed and offset undetermined amount. Section 96 of Act does not require more than marginal efficiency gains for efficiencies defence to apply. Federal Court of Appeal erred in finding that anti-competitive merger could not be approved under s. 96 of Act if only marginal or insignificant gains in efficiency result from that merger. Weight given to quantifiable effects is zero and there were no proven qualitative effects. Tervita made out efficiencies defence by establishing overhead efficiency gains resulting from BLS obtaining access to Tervita’s administrative and operating functions. Commissioner of Competition v. CCS Corp. (Jan. 22, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35314) Decision at 226 A.C.W.S. (3d) 719 was reversed. 248 A.C.W.S. (3d) 811.

Charter of Rights

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ENFORCEMENT OF RIGHTS

Police failed to ascertain whether second strip search was necessary

Accused charged with importing cocaine into Canada. Accused applied for stay of proceedings or exclusion of evidence based on breach of s. 8 Charter rights. Upon her arrival at airport from Jamaica, officers discovered that accused had approximately 1.2 kilos of cocaine hidden in her bra. Customs officers conducted strip search of accused and shortly thereafter transferred custody of her to police. Accused was transferred to detachment and placed in cell, where female officer conducted further strip search of her. Door of cell remained open to hallway and search was video recorded by security camera located in cell. Officers did not discuss circumstances of case and whether strip search was necessary. No supervisory authorization was sought for strip search. After strip search accused provided statement that was video and audio recorded. Accused testified that she felt uncomfortable in circumstances, but that search had no real impact on her or her recorded statement. Accused argued second strip search by police was unreasonable. Accused argued that even though there was no causal connection between search and statement, statement should have been excluded. Search was not challenged until after jury had watched and listened to accused’s recorded statement. Application allowed, evidence excluded, mistrial ordered. Other male officers did not view any part of search and there was no one else in detachment at time of search. Officers were unfamiliar with, or unaware of, any written policy or protocol regarding strip searches, but knew that they were routinely done in drug importation cases. Police failed to ascertain from customs officers whether strip search had been conducted and whether second search was necessary. Suspicion that drugs may be hidden somewhere else did not validate conducting strip search. There were no reasonable grounds for second search since accused was in custody from time of first strip search and would not have had opportunity to acquire or hide on her person any other contraband. Strip search was unreasonable and violated accused’s s. 8 Charter rights. Given facts of case, especially circumstances and timing of bringing of application, stay was not justified. While accused’s statement was taken shortly after search, it was not causally connected to search. Strip search and accused’s statement were integral part of same transaction, there existed temporal connection, and s. 24(2) Charter analysis was appropriate. Charter-infringing conduct was very serious, as strip search was very significant violation of right to privacy and accused’s right to be protected from unreasonable search. Given that accused had attempted to re-enter Canada with cocaine on her person, impact of breach was less significant. Breach did not impact on accused’s demeanour or attitude when her statement was recorded. If statement was excluded, Crown still had case. There was heightened interest in prosecution of this case. Seriousness of breach overwhelmed other two considerations that favoured admission of statement. Actions of officers in relation to second search, while not intentional, reflected troubling lack of knowledge of law and principles to be applied to strip searches. While public had interest in adjudication of case on its merits, educated public would have demanded better police practices. Breach was so significant that accused’s recorded statement ought to have been excluded. As statement had already been viewed by jury, only recourse was to declare mistrial. R. v. Foster (Dec. 12, 2014, Ont. S.C.J., Thomas A. Bielby J., File No. Crim J(F) 296/13) 118 W.C.B. (2d) 489.

Breathalyzer

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DEMAND FOR BREATH (BLOOD) SAMPLE

Crown not required to disprove hypothetic theories not grounded on evidence

Accused appealed conviction for impaired care or control and refusal to provide breath sample. Witness observed tractor trailer driving in erratic manner. Witness testified that truck pulled up to gas pump and that he saw accused, who was swaying and unstable on his feet, trying to put card into pump. When police arrived, witness pointed out accused as driver of truck and then left scene. Officers testified that accused had red-rimmed eyes, slurred speech, and was unsteady on his feet. Officer testified that accused admitted that truck was his and that he was driving it. Officer made demand for breath sample into his approved roadside screening device but accused did not provide suitable sample. Breath technician, who also noted signs of impairment, demanded breath sample into breathalyzer, which accused refused to provide. No keys to truck, vehicle registration, or insurance particulars were ever found on accused or elsewhere. Accused argued that trial judge erred in ruling that only reasonable inference was that he was operator of truck or that he had care and control of it. Accused argued that witness did not see him driving truck or exit its cab. Accused argued that trial judge erred in not considering whether he was gas station attendant or passenger in truck, as either scenario was reasonably plausible explanation and inference that could have been drawn. Accused argued that inference drawn by trial judge was matter of conjecture or speculation and was not reasonable inference on evidence in its totality. Appeal dismissed. Crown was not required to disprove hypothetic theories not grounded on evidence. While accused’s admission that he was driver of truck could not be used to determine identity beyond reasonable doubt, it could be used in regards to reasonable and probable grounds. Given evidence as to erratic driving of truck, fact that accused, who exhibited signs of impairment, was refuelling it, and accused’s admission that he was driver, police had reasonable and probable grounds to make breath demand. Crown did not need to prove beyond reasonable doubt that accused was driver in order to argue that reasonable and probable grounds for demand existed. Trial judge was correct in ruling that reasonable and probable grounds were overwhelming. Trial judge found that there was no other reasonable explanation as to why accused was refuelling truck other than that he had care and control of it. Gas area of truck stop was self-serve facility, finding inconsistent with suggestion that accused could have been gas attendant. Reasonable inference, other than that accused had care and control of truck, would have been matter of conjecture or speculation and would not have raised reasonable doubt. Trial judge did not err and had evidence before him from which he could have drawn facts necessary to support his decision. R. v. Pozniak (Jan. 5, 2015, Ont. S.C.J., Thomas A. Bielby J., File No. SCA(P) 700/13) 118 W.C.B. (2d) 507.

Contracts

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BUILDING CONTRACTS

Motion judge erred in ignoring uncontested sworn evidence

Appellants purchased house from defendants and later discovered structural problems. Expert report identified problems including load-bearing ability of roof and recommended further investigation. Appellants brought action against vendors, their realtor, two real estate agents and City. Second expert report identified further problems and raised safety concerns about roof. One of defendants testified that respondents designed house and prepared working drawings. Appellants moved to amend claim to add respondents as defendants for negligent design of house causing it to be danger to safety. Respondents brought motion for summary judgment. Motion judge granted summary judgment dismissing claim on basis it was barred by limitation period. Plaintiffs appealed. Appeal allowed. Summary judgment was set aside. Motion judge erred in ignoring uncontested sworn evidence on central matter in issue without giving any reasons for so doing. Motion judge did not refer to lawyer’s affidavit that indicated second report was first information that house might be dangerous by design. O’Dowda v. Halpenny (Jan. 19, 2015, Ont. C.A., K.M. Weiler J.A., K. Feldman J.A., and M.L. Benotto J.A., File No. CA C59091) 248 A.C.W.S. (3d) 816.

Civil Procedure

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SETTLEMENT

Language of minutes of settlement not vague, contradictory or unclear

Deceased had been in common law relationship with wife for 18 years when he died. Deceased and wife resided in home that was in name of company, whose shares were in deceased’s name. Deceased had two children from prior union, son and daughter. Deceased’s will named wife executrix and trustee of estate. Will provided that residue of estate would be transferred in equal shares to wife, son and daughter. Wife filed application for certificate of appointment of estate trustee, which son objected to. Son raised issue of validity of will. Sister brought motion for directions. Court appointed B estate trustee during litigation. B tried to sell home but wife resisted his efforts, claiming she was owner of property. B sought advice and directions from court. Wife initiated lawsuits. Son brought motion to remove B as estate trustee and to have sister appointed estate trustee. Parties entered into minutes of settlement. Son brought motion for order nullifying settlement agreement. Motion dismissed. Minutes of settlement were binding contract between those who executed agreement. There was no issue of son’s capacity or intention to enter into minutes of settlement. Mediation and resulting settlement addressed all outstanding issues. Language of minutes of settlement was not vague, contradictory or unclear. There was no basis in law to nullify minutes of settlement. Bryant v. Bryant Estate (Jan. 9, 2015, Ont. S.C.J., Louise L. Gauthier J., File No. 2013-6967) 248 A.C.W.S. (3d) 804.

Immigration

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JUDICIAL REVIEW

Decision refusing adjournment was breach of applicant’s right to natural justice

Applicant came to Canada with his parents when he was 12 years old. Applicant had daughter with common law partner. Applicant was convicted and incarcerated for sexual assault of daughter when she was minor. Admissibility hearing was held while applicant was incarcerated and he was issued removal order. Applicant appealed. Applicant was not represented because he had not been able to obtain lawyer and he asked for adjournment. Board member refused to grant adjournment on basis that applicant had not made reasonable efforts to retain counsel. Applicant applied to reopen appeal but panel dismissed application. Applicant applied for judicial review. Application granted. Failure to consider all factors set out in R. 48(4) of Immigration Appeal Division Rules (Can.), constituted error of procedural fairness. There was no evidence that board member gave any consideration to at least two mandatory factors in Rule 48(4), nature and complexity of matter and previous delays. It was open to board member to grant postponement to fixed date. Panel’s decision to refuse to reopen appeal was unreasonable. Panel failed to consider Rule 48(4) or its jurisprudence and it failed to examine whether board member who refused adjournment had done so. Decision refusing adjournment was breach of applicant’s right to natural justice and fair hearing because board member failed to consider and weigh mandatory factors in Rule 48(4). S. (V.L.) v. Canada (Minister of Citizenship and Immigration) (Dec. 10, 2014, F.C., Russel W. Zinn J., File No. IMM-5114-13) 248 A.C.W.S. (3d) 918.

Aboriginal Peoples

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SELF-GOVERNMENT

Council failed to give applicants notice of intended vote

In 1991, subject First Nation decided to become self-governing and established two governing bodies, one made up of elected chief and four councilors and another, respondent council, made up of representative from each family. In May 2014, council passed motion removing applicants, chief and three of four councilors, from office. Applicants obtained injunction and council rescinded motion. Council then sent letters demanding applicants submit budget, with details of salaries and expenditures, for approval, and attend meeting. Applicants submitted lengthy information package. At meeting, even after receiving confirmation that injunction remained in effect, council passed motion and resolution removing applicants from office. Council then issued notice of and proceeded with by-election. Applicants applied for judicial review, seeking order quashing decision to remove them and declaration by-election null and void. Application allowed. Evidence from those who attended meeting indicated that quorum of ten had not been present for removal vote. Fact that resolution signed by more members of council next day irrelevant. Evidence also indicated that council had failed to give applicants any notice of intended vote or specific allegations against them. That constituted breach of principles of natural justice. While s. 14 of First Nation’s Election Act (Can.), provided authority to remove elected chief and councilors, it conferred that authority on all members of First Nation, not just council. Section 15 of Act required council to support chief and councilors in execution of duties, but did not give power to remove them. Roseau River Anishinabe First Nation v. Roseau River Anishinabe First Nation Custom Council (Dec. 16, 2014, F.C., Sandra J. Simpson J., File No. T-1210-14) 248 A.C.W.S. (3d) 738.

Immigration

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INADMISSIBLE AND REMOVABLE CLASSES

Board’s decision was unintelligible

Foreign national was citizen of Philippines who had come to Canada under live-in caregiver program. Foreign national had defaulted on loan from bank in United Arab Emirates which led to criminal conviction in absentia in that country for uttering in bad faith dud cheque. Inadmissibility report was issued against him and Immigration Division of Board ordered him deported. Foreign national made refugee claim. Minister intervened, contending that foreign national should be excluded from protection for serious non-political criminality pursuant to s. 98 of Immigration and Refugee Protection Act (Can.). Board found that foreign national was excluded by s. 98 of Act and Article 1F(b) of Convention. Board concluded that offence was sufficiently similar to offence of fraud in that it could be prosecuted in Canada under paragraph 380(1)(a) of Criminal Code (Can.), and maximum penalty for that was 14 years, so Board held that it was serious crime. Board found that sentence of 18 months’ imprisonment in UAE was within acceptable international standards. Board accepted foreign national’s submission that this could have been civil matter in Canada. As there were serious reasons to consider that foreign national had committed serious non-political crime, Board concluded foreign national was excluded from protection by s. 98 of Act. Foreign national applied for judicial review. Application allowed; matter returned to another panel of Board for redetermination. Board’s decision was unintelligible. Having found that foreign national could not have been convicted for his conduct in Canada, Board could not simultaneously presume that offence was serious because he could have been convicted, yet that was what Board did. Entire decision was thereby tainted since Board had already applied presumption of seriousness when assessing other factors. By doing so, it had put burden on foreign national to prove that offence was not serious. Board found that penalty of 18 months’ incarceration was not in violation of accepted international standards, however, there was no evidence that defaulting on loan was crime in any other countries, let alone what penalties might be imposed for it. Since burden of proof should have still been on Minister if s. 380(1)(a) of Code was not equivalent offence, this finding was made without any evidence to support it. Further, while length of sentence actually imposed was not always pertinent it was strange that Board only assessed whether sentence was severe by international norms and not whether 18 months was long enough sentence to indicate that foreign national’s actual conduct was serious. For all those reasons, Board’s decision was unreasonable. Notario v. Canada (Minister of Citizenship and Immigration) (Dec. 2, 2014, F.C., John A. O’Keefe J., File No. IMM-2229-13) 247 A.C.W.S. (3d) 916.

Aboriginal Peoples

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SELF-GOVERNMENT

Board not properly constituted and did not have jurisdiction to accept and decide petition

Previous Appeal Board consisted of three members whose term had not expired. One member of Previous Appeal Board died and one resigned because of health issues. Mayor was elected. Complaint was received with respect to mayor and complainant’s wife engaging in texting of sexually explicit nature. Band council resolution (BCR) was passed to present petition to remove mayor from office. Third member of Previous Appeal Board was mother of complainant’s wife and two other members could not be reached. Complaints and Appeal Board of Band Council (New Appeal Board) was appointed to hear petition. Applicants asserted petition and BCR did not conform to requirements. New meeting was held and present BCR was passed authorizing filing of new BCR with same allegations and goal of removing mayor. New Appeal Board conducted hearing but did not allow mayor to see second BCR. There was dispute as to whether mayor was permitted in hearing room for first hour and half. When mayor was present he was not allowed to see evidence presented against him. New Appeal Board declared elected mayor ineligible to hold office of Mayor and appointed second in mayoral elections to serve as mayor. Applicants asserted New Appeal Board was not properly constituted. Applicants sought judicial review. Application granted. New appeal Board was not properly constituted and did not have jurisdiction to accept and decide petition. Process followed in establishing New Appeal Board was improper and unreasonable. It was incumbent on respondents to make every effort to contact at least remaining two Board members to participate in meetings before taking any action to remove or replace them. Respondents did not do so and were unreasonable in removing and replacing two members of Previous Appeal Board. Not giving mother of wife of complainant opportunity to address her alleged conflict of interest was unfair and unreasonable. Apparent urgency in dealing with perceived improper relationship between mayor and complainant’s wife did not excuse summary dissolution of Previous Appeals Board, subsequent meeting of New Appeal Board to discuss respondents’ petition and evidence needed for petition to succeed. Actions were taken in absence of mayor and without his knowledge. Process was not totally independent or free from bias. Process taken for removal of mayor was fatally flawed. Tait v. Johnson (Nov. 20, 2014, F.C., Michael D. Manson J., File No. T-1821-14) 247 A.C.W.S. (3d) 738.

Charter of Rights

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ARBITRARY DETENTION OR IMPRISONMENT

That officer targeting accused not only inference to be drawn from conduct

Accused appealed his conviction for driving “over 80.” At trial accused argued that he was arbitrarily detained in breach of s. 9 of Charter when he provided breath sample into approved screening device. Accused argued arresting officer erroneously believed that he had two previous drinking and driving convictions and had engaged in campaign of watching and stopping him for several months before arrest. Accused and two witnesses testified that this was third time same officer had stopped accused within six or seven hours and that he had frequently driven by locations where accused and his truck were located. While officer testified that he stopped accused because his rear licence plate light was out, accused argued officer’s motivation for stopping him was his mistaken belief about accused’s record and that trivial offence like not having tail light out was not sufficient grounds to make stop. Trial judge disagreed, noting that question was “so what?” if officer was harassing accused because he accepted officer’s evidence light was out and found that this provided him with grounds to stop accused. Officer testified that he did not realize accused’s vehicle was that of person he dealt with earlier until after he had pulled truck over. Officer said that he ran accused’s name on CPIC after he had arrested him for driving with consumed excess alcohol and that record he obtained showed 1990 and 1997 convictions for impaired driving. It was not until he was in midst of cross-examination that officer was told accused had no record. Appeal dismissed. Trial judge’s decision was not unreasonable. Officer swore he was unaware of criminal record, wrongly attributed to accused, until after his arrest on excess alcohol charge. Officer remembered stopping accused earlier on seatbelt infraction and had no memory of incident where he pulled over another vehicle, in which accused was passenger, but in which female bartender had been driving. There was no dispute that officer would drive through Legion parking lot, in his words, to show police presence that could make people think twice about driving after drinking. While it was possible officer was targeting accused, that was not only inference to be drawn from that conduct. If it were determined that officer had one improper purpose for stopping accused in addition to Highway Traffic Act (Ont.) violation, it would have rendered stop unlawful. Court agreed with accused that trial judge erred in that regard. However, insurmountable hurdle for accused was trial judge’s reasonable finding officer was not improperly targeting accused. R. v. Sherrard (Nov. 10, 2014, Ont. S.C.J., Durno J., File No. Guelph CR-13-0250-AP) 118 W.C.B. (2d) 23.